On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County.
Approved for Publication July 3, 1995
Before Judges Michels, Stern and Keefe. The opinion of the court was delivered by Stern, J.A.D.
The opinion of the court was delivered by: Stern
Plaintiff appeals from a post-judgment order entered on March 14, 1994, denying her motion "to adjust equitable distribution of the military pension or vacate Judgment regarding equitable distribution." We believe that the motion Judge abused her discretion in denying plaintiff's application, and remand for a plenary hearing.
The judgment of divorce was entered on March 8, 1988, following a trial before Judge Dominick J. Ferrelli. Judge Ferrelli awarded plaintiff "22.75% of Husband's disposable retired pay upon his retirement from the U.S. Army plus cost of living increases on said portion as they are received by way of equitable distribution of Husband's military pension." The final judgment also provided, in paragraph 10, that:
It is the Court's intention that the within award of pension by way of equitable distribution shall be based upon the percentage herein set forth of Husband's retirement pension less only Federal, State, or local Income Taxes properly withheld required by law in amounts not greater than Husband claiming all dependents to which he is entitled, with no additional reductions from said retired pay.
When defendant retired in December 1991, the Department of Defense commenced paying 22.75% of defendant's pension to plaintiff pursuant to the Uniformed Services Former Spouses' Protection Act, 10 U.S.C.A. § 1408.
After retiring, defendant applied for service-related disability benefits. On May 13, 1992, he was awarded a disability benefit in the amount of $342 per month. Because defendant cannot receive "full payment of both service retired pay and VA compensation," the amount of defendant's retirement pay had to be reduced by the amount of his disability payments. Defendant's disability pay was increased to $502 per month effective December 1, 1992. *fn1
Defendant's "retired pay" was reduced by the amount of his disability award. Accordingly, plaintiff's 22.75% share of defendant's pension was reduced from $249 per month to $97 per month. Plaintiff, thereafter, filed a motion to require defendant to pay her the $152 monthly difference between what she received before and after defendant commenced receipt of disability benefits. In plaintiff's words:
Since that time defendant has made an application to the military to reallocate part of his retirement pay as disability making same tax free to him and at the same time reducing the portion that is allocated as retirement pay upon which the 22.75% Order was based and now has reduced the payment I receive for equitable distribution to approximately $97.00 per month or approximately $23.00 per week. I ask that he be required to pay directly the sum of $152.00 per month as additional equitable distribution to give effect to the original equitable distribution Order as he continues to receive the same gross pension but now must pay even less taxes on same with the greater allocation of the same amount as disability giving him an even greater net pay than that upon which the original Judgment for Divorce was based.
Plaintiff sought relief under R. 4:50-1(f). In response, defendant contended that plaintiff was aware of his physical disabilities prior to the divorce trial, that equitable distribution was premised on retirement pay, that there was no "fraud, mistake or misrepresentation," which had to be proved, and that plaintiff was not entitled to share in defendant's disability benefits under federal law.
In denying relief, the motion Judge (not Judge Ferrelli) relied upon Schwartzman v. Schwartzman, 248 N.J. Super. 73, 77, 590 A.2d 246 (App. Div.), certif. denied, 126 N.J. 341 (1991), in which we held that relief can be obtained under R. 4:50-1(f) "only if the party requesting it can demonstrate that enforcement of the order would be unjust, oppressive or inequitable." See also Rosen v. Rosen, 225 N.J. Super. 33, 36, 541 A.2d 716 (App. Div.), certif. denied, 111 N.J. 649 (1988).
In concluding that plaintiff did not "demonstrate that enforcement of the order would be unjust, oppressive or ...